The news story you can
find here provides more details about the prosecution.

According to the opinion, the case began in January of 2005,
when Tosti took his

computer to a CompUSA store for
service. According to Tosti, `[he] understood that a technician at CompUSA
would have temporary custody of the computer, and would inspect it as needed to
complete the requested repairs.’

U.S. v. Tosti, supra.A CompUSA employee, Seiichi Suzuki, was
working on Tosti’s

machine when he discovered pornographic images of
children in a sub-folder, which prompted him to contact the police. According
to Suzuki, he was `opening various folders and subfolders to look for images,’
and he and a technician `were randomly checking what was on the drive folders
when [they] eventually encountered images that looked like child pornography.’ .
. . Suzuki advised police that `he discovered numerous photographs in the file
of naked children and adult men.’ `He said the photographs depicted many graphic
sex scenes of children.’

Two detectives, George Schikore and Ed Rudolph,
responded to Suzuki's call. Schikore arrived first. When he got to the store, `there
were numerous images appearing on the computer monitor in a very small
‘thumbnail’ format.’ According to Schikore, he `could tell by looking at the
[thumbnail] pictures that they depicted child pornography.’

Schikore
purportedly `directed [Suzuki] to open the images in a “slide show” format so
they would appear as larger images viewable one by one.’ Suzuki `opened up the
individual images in the “slide show” format, using keys to move forward or
backward as requested by [Schikore].’

Detective Rudolph arrived later and scrolled through
the active images on the computer monitor. According to Rudolph, there were `more
than two-dozen [t]humbnail view graphical files maximized on the desktop.’
Rudolph stated that he scrolled through the images on the screen, but also
indicated that he could tell even from the thumbnail images that they depicted
obvious sexual activity between adults and children.

The detectives seized Tosti's computer.
Based on Rudolph's observations, Detective Mojib Aimaq prepared an affidavit
supporting the issuance of a search warrant for Tosti's computer, residence,
office and two vehicles registered to Tosti and his wife. A Marin County
magistrate judge issued the warrant, which was executed the following day.

U.S. v. Tosti, supra.

Tosti “was eventually arrested on October 16, 2009.”U.S. v.
Tosti, supra.In a footnote, the
opinion says there “is no explanation in the record for the lapse of four years
without any apparent activity.”U.S. v. Tosti, supra.A few days later,

on October 20, 2009, Tosti's then
estranged wife, Annette Tosti, contacted FBI Special Agent Elizabeth Casteneda.
Ms. Tosti had been married to Tosti for approximately twenty years, during the
majority of which time they maintained a residence in San Rafael, California.

Tosti
had purportedly asked Ms. Tosti to locate financial records, which were stored
in a room inside the Tosti home that Tosti was utilizing as an office. During
her search, Ms. Tosti found documents that appeared to contain pornography.

She
turned those documents and some internal and external hard drives over to
Casteneda. At that time, Ms. Tosti explained to Castaneda that she lived with
her husband in the house and had full access throughout the residence. Ms.
Tosti also advised Casteneda that she was responsible for cleaning the office.

U.S. v. Tosti, supra.

Two days after that, on October 22, 2009, Mrs. Tosti
contacted Casteneda and asked

her to take several items from the
Tosti home. That same day, Ms. Tosti turned over a Dell computer, several
external hard drives, and numerous DVDs. None of these were password protected
or encrypted, and they appeared to contain pornography.

Ms. Tosti signed a `Consent to Search’
form authorizing agents to search the items she turned over on October 22. On
that form, Ms. Tosti stated, `The above items both my husband, Donald Tosti and
I use.’

Casteneda did not see any `signs, extra locks or other indicia’ that
the home office `was anything other than an area of the residence to which
Annette Tosti had common access as she consistently maintained.’

Tosti's brother-in-law also declared he
had not seen any indicia that Ms. Tosti's access to the home office was
limited. Tosti nonetheless avers that he and Ms. Tosti had `an explicit
agreement that [they] would not enter each other's private work areas without
first announcing [themselves] and then getting permission.’

U.S. v. Tosti, supra.

Prior to trial, Tosti moved to suppress the government
seized in the 2005 and 2009 searches.U.S. v. Tosti, supra. The district court
granted the motion in part and denied it in part, “suppressing only the first
batch of evidence” Ms. Tosti turned over to Casteneda on October 20,
2009. U.S. v. Tosti, supra.

On appeal, Tosti, argued, first, that “the warrantless
searches of his computer at CompUSA were unlawful” and that the evidence
discovered in those searches should be suppressed. U.S. v.
Tosti, supra.The Court of Appeals
began its analysis of the argument by noting that the 2005 searches

derive from Suzuki's original private
search of Tosti's computer after Tosti voluntarily relinquished it to CompUSA.
The 4th Amendment's proscriptions on searches and seizures are inapplicable to
private action. See U.S. v. Jacobsen, 466 U.S. 109 (1984).
`Once frustration of the original expectation of privacy occurs, the Fourth
Amendment does not prohibit governmental use of the now-nonprivate
information.’ U.S. v. Jacobsen, supra.

Instead, the 4th Amendment `is
implicated only if the authorities use information with respect to which the
expectation of privacy has not already been frustrated.’ U.S. v.
Jacobsen, supra. `The additional invasions of respondents' privacy by the
government agent must be tested by the degree to which they exceeded the scope
of the private search.’ U.S. v. Jacobsen, supra. See
also U.S. v. Jacobsen, supra (`The agent's viewing of what a private party
had freely made available for his inspection did not violate the 4th
Amendment.’).

U.S. v. Tosti, supra.For more on private searches, check out this
prior post.

The Court of Appeals found that under Jacobsen, neither
Schikore nor Rudolph

`searched’ Tosti's photos for 4th
Amendment purposes because Suzuki's prior viewing of the images extinguished
Tosti's reasonable expectation of privacy in them. Tosti admitted that by
voluntarily taking his computer to CompUSA for repairs he `understood that a
technician at CompUSA would have temporary custody of the computer, and would
inspect it as needed to complete the requested repairs.’

Indeed, Tosti appears
to concede he had no reasonable expectation of privacy in the thumbnail version
of the pictures Suzuki had already viewed. Tosti instead argues that detectives
exceeded the scope of Suzuki's private search when: (1) Shikore directed Suzuki
to enlarge the images and viewed the photos in slideshow format; and (2)
Rudolph scrolled through the thumbnail photos.

The district court found that Shikore viewed only
those photos Suzuki had already viewed. Tosti does not contest that conclusion
here, nor does the record contradict it. The only question with respect to
Shikore, then, was whether Tosti was entitled to suppression because Shikore
purportedly viewed those pictures not just as thumbnails, but also as enlarged
pictures in a slideshow format.

Even
assuming Shikore viewed enlarged versions of the thumbnails, he still did not
exceed the scope of Suzuki's prior search because Suzuki and both detectives
testified that they could tell from viewing the thumbnails that the images
contained child pornography. That is, the police learned nothing new through
their actions.

Since Suzuki -- a private individual to whom Tosti voluntarily
delivered his computer with the explicit understanding that he would inspect
the system to complete the repairs -- could discern the content of the photos,
any expectation of privacy Tosti had in those pictures was extinguished.
Whether detectives later enlarged them (or the size of the enlargements, for
that matter) is thus irrelevant.

U.S. v. Tosti, supra.

The court also found that Tosti was not entitled to have the
evidence suppressed on the

basis that Rudolph scrolled through the
thumbnails. Again, scrolling through the images Suzuki had already viewed was
not a search because any privacy interest in those images had been
extinguished. Moreover, Rudolph did not view any more photos than Suzuki had
viewed.

Tosti agreed that: (1) there was no `evidence in the record to suggest
that either Shikore . . . or Rudolph viewed any file folder or images other
than the file folder and images opened by Suzuki’; and (2) the `crux of Tosti's
argument [was] that the detectives allegedly asked Suzuki to enlarge the images
and subsequently scroll[ed] through the file folder.’

The district court explicitly held `that
on the facts . . . , this is not a situation where the Detectives reviewed more
file folders or images than Suzuki viewed.’ The district court's factual
finding is not clearly erroneous.

U.S. v. Tosti, supra.

Tosti also argued that the district court judge “erred in
failing to suppress the evidence seized from his home office and computer media
in 2009” because, according to Tosti, his wife “had neither actual nor apparent
authority to consent to those searches.” U.S. v.
Tosti, supra.As Wikipedia notes,
when someone consents to a search they waive, or surrender, their 4th
Amendment rights.And as I have noted in
prior posts, to be able to consent to a search a person must have (i) actual or
(ii) apparent authority to do so.

The Court of Appeals began its analysis of Tosti’s argument
concerning the 2009 search by noting that

`a person with common authority over
property can consent to a search of that property without the permission of the
other persons with whom he shares that authority.’ U.S. v. Murphy, 516
F.3d 1117 (U.S. Court of Appeals for the 9th Circuit 2008)

`Under
the apparent authority doctrine, a search is valid if the government proves
that the officers who conducted it reasonably believed that the person from
whom they obtained consent had the actual authority to grant that consent.’ U.S.
v. Welch, 4 F.3d 761 (U.S. Court of Appeals for the 9th Circuit 1993).

`To establish apparent authority, the
Government must show that: (1) [officers] believed an untrue fact they used to
assess . . . control; (2) it was objectively reasonable for [officers] to
believe the fact was true; and (3) if the fact was true, [the third party]
would have had actual authority to consent.’ U.S. v. Enslin, 327
F.3d 788 (U.S. Court of Appeals for the 9th Circuit2003) “`T]he doctrine is applicable only if the
facts believed by the officers to be true would justify the search as a matter
of law.’ U.S. v. Welch, supra.

U.S. v. Tosti, supra.For more on apparent authority, check out
this prior post.

The Court of Appeals did not buy Tosti’s argument. Instead,
it found that the Tostis

were married and had resided in their
shared residence for over twenty years. Ms. Tosti advised Casteneda that both
she and Tosti used the computer and storage devices located in their home. Even
if Ms. Tosti's representations were not true, there were no objective
indications that [her] access to the office was limited. There were no locks or
other signs that Tosti tried to keep his wife out of the office. Also, the
computer and electronic media were neither password protected nor encrypted.

The factthat Tosti now contests Ms. Tosti's actual
authority does not undermine the district court's finding of apparent
authority. There was no indication at the time of the search that Casteneda was
on notice that Ms. Tosti might not have the authority to consent.

All objective indicia supported Casteneda's
conclusion that Ms. Tosti's consent was sufficient, and the district court
properly denied Tosti's motion to suppress.

U.S. v. Tosti, supra.In a footnote, the court explains that

[e]ven if Casteneda knew the couple
were estranged -- a matter that is not clear from the record -- Ms. Tosti
continued to live in the home and to have access to the devices she turned over
to the Government. Accordingly, Casteneda reasonably believed Ms. Tosti had
authority.

U.S. v. Tosti, supra.

For these and other reasons, the Court of Appeals therefore
affirmed Tosti’s conviction and sentence. U.S.
v. Tosti, supra.